LOS ANGELES (CN) - Former Orange County Sheriff Michael Carona claims that a trial court mistakenly sentenced him to 66 months in prison for corruption by using honest services fraud as an underlying offense.
Federal prosecutors indicted Carona in 2007, accusing him of using his office for personal gain, two counts of witness tampering, and taking a boat, boxing tickets, more than $112,000 cash and other illegal, unreported gifts. He faced up to 105 years in prison if convicted on all counts.
A federal jury convicted Carona in 2009 of a single witness tampering count and acquitted him of mail fraud, conspiracy and a second count of witness tampering.
He began serving his sentence at a federal penitentiary in Colorado in 2011, but not before it was revealed that he had received more than $215,000 in pension checks for the year before despite his felony conviction.
The 9th Circuit upheld Carona's conviction, and the U.S. Supreme Court declined to hear his appeal this year.
Despite this, Carona claims the trial court used the wrong federal sentencing guidelines by treating honest services fraud as the underlying offense and handing him 5½ years in prison.
"In 2010, just a year after Carona's sentencing, the Supreme Court held that honest services fraud is limited to bribes and kickbacks [in Skilling v. United States]. The Court specifically excluded ... the nondisclosure theory that was the heart of the government's case against Carona," the former sheriff states in his motion to vacate.
Carona claims that the government presented two theories of honest services mail fraud - nondisclosure and bribery. At trial, however, the government had to abandon the bribery theory after a key witness denied being involved in acts of bribery. Since that witness's potential testimony would conflict with the other star witness's testimony, U.S. prosecutors decided not to put him on the witness stand.
"Not surprisingly, the government's evidence, arguments and theory of criminal liability at trial focused almost exclusively on the nondisclosure theory," Carona claims. "The nondisclosure theory did not require a bribe or a kickback; it rested solely on the nondisclosure of material financial information. The government described this as the 'primary theory under which this case was indicted and tried to the jury.'"
Carona says his sentence should be in the range of 24 to 30 months - less than half of what he got.
"Skilling makes clear that Carona's nondisclosure of gifts he allegedly received from Haidl does not fall within [honest services fraud]. Nor does that nondisclosure constitute any other federal crime," Carona says in the brief.
Haidl is a businessman who admitted paying Carona $1,000 a month for a "Get Out of Jail Free card."
"To the extent the court rejects Carona's position and concludes - over his objection - that Carona's conduct involved obstructing the investigation of a 'criminal offense,' then the court must determine the offense that Carona allegedly obstructed ... the 'underlying offense.' The government's charging decision does not control. Rather, the court 'should make a finding on what constitutes the underlying offense and this determination, like any other factual finding, must be supported by the evidence," Carona says, citing United States v. Arias.
Carona claims that bribery requires proof of quid pro quo under the honest services fraud statute.
"[T]he government did not establish the quid pro quo element here; it did not prove, in other words, that Carona performed or agreed to perform any official acts in exchange for the gifts that Haidl allegedly gave him," Carona claims.
Despite being incarcerated, Carona has been no stranger to California courtrooms in recent years. In addition to the appeals in this case, the 9th Circuit tossed lawsuits from two of Carona's former deputies, Jeffrey Barzik and William Hunt , who claimed that the ex-sheriff retaliated against them for running against him in elections.
In both cases the appellate court found that the men were essentially policymakers for the Orange County Sheriff's Department, and therefore not protected from Carona's political retaliation.
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